The Joint Commission on Accreditation of Healthcare Organizations (JCAHO) has declared a zero-tolerance policy on threatening, intimidating or otherwise disruptive behavior. Accordingly, hospitals will need to get tough on offenders or risk losing their JCAHO accreditation. Physicians can expect closer review of conduct that may have been tolerated in the past. That said, hospitals that inconsistently apply the tougher policies for questionable purposes or economic reasons are likely to be subject to litigation.

A JCAHO leadership standard, which became effective January 1, 2009, requires hospitals and other accredited organizations to adopt and implement a code of conduct that defines and manages disruptive or inappropriate behavior by physicians and administrators. Leadership Standard LD.03.01.01 was announced in Sentinel Event Alert 40 issued on July 9, 2008, titled “Behaviors That Undermine a Culture of Safety,” posted at http://www.jointcommission.org/assets/1/18/SEA_40.PDF.

Targeted behavior patterns include overt actions such as verbal outbursts and physical threats as well as passive activities such as refusing to perform assigned tasks or quietly exhibiting uncooperative attitudes during routine activities, reluctance or refusal to answer questions, return phone calls or pages, condescending language or voice intonation and impatience with questions. Policies adopted by hospitals have been defined broadly to encompass acts that may also constitute gross negligence or malpractice, HIPAA violations, workplace discrimination, fraud and even assault. For instance, some examples of disruptive behavior cited in policies include:

Abusive behavior to patients, families, colleagues or visitors, including rudeness, discourtesy or negative comments about physicians or nurses with the intent to discredit; belittling, berating and/or threatening another individual; non-constructive criticism, addressed to its recipient in such a way as to intimidate, degrade, demean, undermine confidence, belittle or imply stupidity or incompetence; shaming or inappropriately blaming others for negative outcomes.

Physical or verbal harassment, threats or assault on a physician, nurse, employee or other member of the hospital organization; threats of physical violence; assault/battery; throwing of instruments or equipment; inappropriate touching or gestures.

Falsification of medical or other hospital records.

Unauthorized possession, use, copying or reading of hospital records or disclosure of information contained in such records to unauthorized persons.

Disregard of established safety, housekeeping or sanitary control conditions.

Use of profanity, vulgarity, violent, intemperate, intimidating or threatening language or behavior.

Harassment, i.e., unwelcome conduct, whether verbal, non-verbal, physical or visual, that is based on a person’s status, such as sex, color, race, ancestry, national origin, age, disability, job status or other recognized group status, and including retaliation against persons who report disruptive behavior or sexual harassment, or conduct that interferes unreasonably with an individual’s work performance or creates an intimidating hostile or offensive work environment.

Inappropriate and impertinent medical record entries, including “cute” abbreviations or illustrations, or other notations insulting patients or families, impugning the quality of care being provided by the hospital or any other individual or attacking particular physicians, nurses or hospital policies. (“GOMER” is a good example – Google it if you’re not familiar with it).

Imposing idiosyncratic requirements on the nursing staff that have nothing to do with better patient care but serve only to burden the nurses with “special” techniques and procedures.

Unauthorized handling, possession or use of any drugs or alcoholic beverages on hospital premises or working under the influence of controlled substances or intoxicants.

Disruptive physician behavior has been the subject of medical staff investigations and sanctions for decades and has resulted in considerable litigation over the years. The Physicians Health Programs of the Pennsylvania Medical Society, which was established to address substance abuse, also evaluates physicians with behavior issues.

Physicians are not the only ones whose outbursts are under heightened scrutiny. JCAHO has noted, “While most formal research centers on intimidating and disruptive behaviors among physicians and nurses, there is evidence that these behaviors occur among other health care professionals, such as pharmacists, therapists and support staff, as well as among administrators.”

Of particular concern is the widely reported perception of a double standard that allows high-volume physicians (and powerful administrators) more leeway to engage in egregious conduct. Such perceived favoritism may also result in allegations of inappropriate inducements to profitable physicians and harsher treatment of their less-profitable colleagues.

It may be tempting for hospitals to go easier on a busy, profitable physician, but that is a mistake. Failure to adequately monitor a high-volume practitioner who allegedly performed medically unnecessary procedures was the basis for a criminal prosecution that resulted in a three-year prison term and seven-figure fine in the United Memorial Hospital case in Greenville, Michigan, involving pain management physician Dr. Jeffrey Askanazi. Although it was his quality, not his behavior, that caught the Justice Department’s attention, there was clear evidence the administration was willing to overlook problems with its most profitable physician, and that evidence contributed to the prosecution’s victory.

The JCAHO standards require each accredited organization to adopt a code of conduct that defines acceptable and disruptive and inappropriate behaviors and requires its leaders to create and implement a process for managing disruptive and inappropriate behaviors. Further, the Sentinel Event Alert recommends health care organizations take 11 specific steps:

1. Educate all team members – both physicians and non-physician staff – on appropriate professional behavior defined by the organization’s code of conduct.

2. Hold all team members accountable for modeling desirable behaviors and enforce the code consistently and equitably among all staff.

3. Develop and implement policies and procedures/processes appropriate for the organization that address:

“Zero tolerance” for intimidating and/or disruptive behaviors, especially the most egregious instances of disruptive behavior such as assault and other criminal acts. Incorporate the zero tolerance policy into medical staff bylaws and employment agreements as well as administrative policies.

Medical staff policies regarding intimidating and/or disruptive behaviors of physicians within a health care organization should be complementary and supportive of the policies present in the organization for non-physician staff.

Reducing fear of intimidation or retribution and protecting those who report or cooperate in the investigation of intimidating, disruptive and other unprofessional behavior.

Responding to patients and/or their families who are involved in or witness intimidating and/or disruptive behaviors.

How and when to begin disciplinary actions (such as suspension, termination, loss of clinical privileges, reports to professional licensure bodies).

5. Provide training and coaching for all leaders and managers in relationship-building and collaborative practice.

6. Develop and implement a system for assessing staff perceptions of the seriousness and extent of instances of unprofessional behaviors and the risk of harm to patients.

7. Develop and implement a reporting/surveillance system (possibly anonymous) for detecting unprofessional behavior.

8. Support surveillance with tiered, non-confrontational interventional strategies. These interventions should initially be non-adversarial in nature, with the focus on building trust, placing accountability on and rehabilitating the offending individual and protecting patient safety.

9. Conduct all interventions within the context of an organizational commitment to the health and well-being of all staff, with adequate resources to support individuals whose behavior is caused or influenced by physical or mental health pathologies.

10. Encourage inter-professional dialogues across a variety of forums as a proactive way of addressing ongoing conflicts, overcoming them and moving forward through improved collaboration and communication.

11. Document all attempts to address intimidating and disruptive behaviors.

These recommendations recognize the inherent subjectivity of behavior problems and, by utilizing a measured, respectful approach, establish some limited “due process” to protect the wrongly accused as well as the accuser. Many physicians accused of disruptive behavior suspect ulterior motives or double standards, and following these recommendations would help make the process more fair and transparent.

The Joint Commission notes that hostile and dysfunctional environments are readily recognized by patients and their families as well as hospital staff and failure to address and manage behavior problems exposes facilities to litigation from both patients and employees. Now that the new standards are in effect, plaintiffs’ malpractice attorneys can be expected to use them to their advantage when there is evidence of tolerance of abusive, hostile or unprofessional conduct by physicians or non-physicians.

If the standards are applied unevenly to favor or reward high-volume physicians, there may be serious consequences: Qui tam whistle-blowers may allege illegal inducements, co-workers subjected to disruptive behavior may sue hospitals, and patients may allege incompetent or dangerous practitioners were permitted to remain on staff where their conduct resulted in poor care or injury.

For more information about this topic, please contact William H. Maruca at 412.394.5575 or [email protected].

This article first appeared in The BULLETIN of the Allegheny County Medical Society and is reprinted here with permission.